Category: 2015

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Affordable Legal Services – A Win-Win Situation

When I was 5 years old, I would stand at the entrance of my parents’ grocery store and greet the incoming customers by offering them a complementary piece of candy. It has been said that I was the original Wal-Mart greeter, though this claim has never been verified. Working in my parent’s family owned and operated business made me aware of the daily plight of an entrepreneur that fights to survive and aims to thrive.

There is a point to this anecdote – just like entrepreneurs, lawyers have to decide whether they will provide better quality service or lower their cost of service in an effort to be successful. Given our legal system’s current access to justice issue, I believe that the better option is to reduce the cost of legal services as this will benefit both lawyers and clients.

The legal profession is a service based industry and customer service is vital to acquiring and retaining clients. After reading sections of Richard Susskind’s book, Tomorrow’s Lawyers, it became apparent that clients’ needs are not being met, which is largely due to the cost of legal services. Susskind suggests that “[o]ur focus should be on helping our clients to meet their formidable more-for-less challenge rather than obstinately holding on to outdated, inefficient working practices” (28). It is no secret that many individuals do not have the financial resources to address their legal issues, but what puzzles me is why more hasn’t been done to respond to this problem.

There are a number of ways that lawyers can reduce legal fees to attract more clients and Susskind provides valuable insight about embarking on this endeavour. The author discusses his conception of “bespoke” legal work and explains this concept as a lawyer viewing a client’s circumstances as being unique, which requires the lawyer to handcraft a legal solution that specifically focuses on the individual matter at issue. While Susskind believes that some legal issues arise that require “the application of acute legal minds and the handcrafting of tailored solutions…much less legal work requires bespoke treatment” and can be handled with a standardized approach (24). To illustrate his point, Susskind uses the example of an employment contract. He explains that if a bespoke approach was adopted, the contract would be drafted from scratch for each client, whereas if a standardized approach was implemented, a routine process and template or precedent would be used for numerous clients. By using the former approach, the lawyer expends a great deal of time on each contract and each client receives a substantial bill, which excludes a number of potential clients who cannot afford such a service. However, by using the latter approach, the lawyer initially invests time in drafting a contract to serve as a template and each client pays a reasonable bill, which attracts more clients as the service is more affordable.

Susskind’s views on the bespoke and standardized approaches were echoed by a founding partner of relatively new law firm that I had the pleasure of meeting with recently. The lawyer explained that some legal professionals generate money by reinventing the wheel each time a client walks through their door, thus implementing a “bespoke” approach. He informed me that this approach is nearing extinction as the majority of people cannot afford this type of service. He went on to share his method of using templates to generate money by offering his legal services at a reasonable cost to obtain more clients, thus employing a standardized approach. His successful implementation of the standardized approach causes me to believe that it would be better to cast a wider net and capture more people by reducing the cost of certain legal services, as this would result in a win-win situation.

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Is there room for creativity in law?

As I was casually looking through Facebook this morning, a friend posted an article from the New York Times called “Abandoning the Work I Hated”. This is an opinion piece about a lawyer who gave up law and became a party clown. He left law because he realized that he thrived in a sphere of creativity and spontaneity and law was not providing him with that.

Confession: years before law school I was a theatre major and took a course on clowning. Yes, I was once a clown… it was awesome. Anyway, I find law school constantly draws on my creative side, albeit in a very different way than being a clown. But as I was reading the article I starting thinking about whether there were larger issues for this person beyond creativity. Did he experience issues with the profession because of its reluctance to change?

In Mitch Kowalski’s book, “Avoiding Extinction” the character Mark joins a new law firm as a “last chance” to see if law is the right career for him. At his last firm he felt, that there was, “no connection between what he did and what was important to the firm”.

As I was reading the New York Times piece I thought whether Mark’s issue was similar to the party clown’s.   What was it that made him leave the profession? The article states that it was the creativity and spontaneity that he lacked in his legal career.

As a naïve student I don’t believe that law lacks creativity and spontaneity. But I believe that the path big law is on lacks these elements. From the readings and discussions in class it is clear that law firms can no longer act as per the status quo. Change is inevitable. The culture of law needs to change to match our society’s needs, whether that is examining the billable hour, commoditizing work or multi-sourcing, as Susskind suggests.   There is room for creativity its whether law is ready for it.

I think the lawhacks assignment is going to be an excellent display of how legal minds can switch on their creative side and develop ideas that could help to progress the profession.  There are issues for the trajectory of law, however, that said as we enter the work force we have to show our ability to be creative in our problem solving, use of technology, and client management.

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Lack of Articles – a Self-Perpetuated Problem?

Each year as law students we ask ourselves – will I be able to secure a legal summer job? Then in 2L we ask ourselves the big question – the one we all stress over – will I land an articling position? In fact, speaking from personal experience, it seemed as though most of my 2L experience was consumed by this question. It’s a stressful time.

Over the past few years the legal job market has shrunk considerably… and there in enters fairly anxious law students. You start to question whether coming to law school was the right decision. Was the risk – financially, personally – worth it?

With supply outweighing demand, economic pressure to fix this problem has been placed, in particular, on law societies across the country. Being from Ontario I am familiar with LSUC’s (Law Society of Upper Canada’s) possible “solution” to this problem. LSUC, in response to changes in the legal profession, introduced the Pathways Pilot Project. Now students wishing to practice law in Ontario may either article or complete the Law Practice Program (LLP), which consists of a 4-month training course and 4-month placement, which by the way, to my knowledge, may go unpaid.

I see a few issues with this pilot project. First, word on the street is that this program is already viewed as a second-tier alternative to the traditional articling experience. Second, this program isn’t free – there is a cost, which isn’t insubstantial, associated to partake. Third, the 4-month placement, as stated above, is not guaranteed to be paid. While I applaud LSUC for taking a step in the right direction, I question whether the pilot project will eventually solve or simply delay the growing problem of oversupply in the legal profession.

Even with these types of programs, if other provinces were to follow suit, would the problem truly be fixed? I don’t know the answer to that question, but I can’t help but wonder whether this is a self-perpetuating problem. In Canada, over the past 4 years, two new law schools have opened, one in Ontario at Lakehead University and the other, as we all know, in Kamloops BC at Thompson Rivers University. Don’t get me wrong, I love TRU Law, I’m just stating the facts. In addition, from what I could find online, law school admission rates are, on average, also increasing. I don’t know about you but this doesn’t add up.

I would argue that the legal profession, as a whole, is hyper aware of the oversupply, under-demand problem we now face but what is being done to correct it? I think I can speak for most of us law students when I say this – as someone about to enter the profession, this worries me.

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So You Want to Join Twitter?

An online presence is important. This same statement may not have been true ten years ago, but today the internet is so prevalent it seems that professionals ignore its power at their own peril. While it may seem unnecessary for lawyers to be active online (through Twitter, blog posts etc.) this is quickly changing. After all, law is a competitive industry with firms fighting tooth and nail for every billable hour they can get. If a lawyer can increase their client base through online networking they would be a fool not to do so, some say.

However, participating in the online community does come with drawbacks. The informality of the internet encourages off-the-cuff remarks to fast-moving events. This type-before-you-think ethos is of particular harm to lawyers who not only have to worry about their professional reputation but also must be sure to be on the right side of the profession’s code of ethics. An off-colour joke made on Twitter can be devastating to anyone’s reputation, but as lawyers are held to an exceptionally high standard of conduct this type of behavior is especially risky.

I particularly wonder about this for lawyers in the public sphere. While private lawyers may rely on their reputation to secure clients, public lawyers are in a slightly different position as they receive work purely through their position as a government employee. Marketing oneself to the public won’t do much to increase the client roster of a Crown prosecutor, as they don’t have “clients” in the traditional sense of the word. So when public lawyers see little or no marketing benefit from an online presence, the drawbacks of this type of networking come to the fore. All lawyers are held to a high standard, but this is particularly true for public lawyers. They are seen as extensions of the government, and in some cases of the justice system itself. Appearing funny and relatable online may be a benefit for a private lawyer, but the public wants its criminal prosecutors to be serious above all else. Being too accessible online can be a detriment to a prosecutor who needs to appear unbiased at all times.

 In addition to the lack of professionalism that may come from an active online presence, there are also potential safety concerns. This was made very clear by one law professor (who I will not name) who requested that no one record or film his class. This request was not due to the fact that he didn’t like his voice on tape (although he admitted this to be true), but rather because as a BC Crown prosecutor he has had serious threats made against his life. Keeping all current pictures of himself off the web is something that he does to ensure his safety from such threatening individuals. While this is of course an extreme example, it illustrates just how high the stakes can be for some lawyers.

 The internet is a powerful tool. And as such, it must be used carefully. For some, it is an easy and cheap way to engage in online networking and marketing, which is essential to their success as a lawyer. For others, it presents more problems than benefits. It is because of this that everyone must think clearly before diving headfirst into the creation of a professional, online persona.

 

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Can the virtual law office stop the exodus of women?

In recent times, commentators and academics alike have predicted the decline of the legal profession. Many have argued that in its current state, the legal profession is unsustainable.

Within the field of law change seems imminent. Discontent is rising as lawyers grapple with the demanding nature of the profession.

In August, Chief Justice Beverly Mclachlin addressed concerns of decline and stressed the need for change if the legal profession is to remain strong, relevant and independent in the 21st century. Her Honour pointed to several areas of internal frustration, which may hasten the winds of change.

“Discontent within the legal profession extends to the culture of law firms… This culture imposes a high professional price on lawyers with family responsibilities – typically women.”

Described as the “only job with an industry devoted to helping people quit” dissatisfaction within the field of law is widespread. Indeed an entire side industry has sprouted up with the sole purpose of helping lawyers find new jobs in non-legal sectors and female lawyers are among the first to leave.

The Canadian Bar Association (CBA) has suggested three main reasons why women leave the profession:

  1. Discrimination in the workplace – treatment and type of work women are assigned/offered
  2. Work-life balance – in the home, women still do the lion’s share of the work and are less likely than men to have a stay-at-home spouse
  3. Pursuit of other interests – women are less likely than men to identify themselves solely as a lawyer

In its current state, the legal profession is strongly influenced by male culture. Business networking happens more often at golf tournaments than spa days in the world of law. Hierarchy, style of practice, networking approach, client development and competitiveness can create a “conform-or-fail” environment for newcomers.

STATS

50% Lawyers who said they felt their firms were doing “poorly” or “very poorly” in their provision of flexible work arrangements
75% Women associates who found it difficult to manage the demands of work and personal/family life
69% Women partners who found it difficult to manage the demands of work and personal/family life

http://www.catalyst.org/knowledge/women-law-canada-and-us

 

Why is change important? The exodus of female lawyers is having a negative impact on the legal profession. In terms of hard numbers, one study reported that when an associate leaves, the average cost to a firm (training and development, separation costs, etc.) is $315,000. Gender equality promotes diversity, which brings different viewpoints and new problem solving approaches to the workplace. Some have argued that having women in leadership roles may equate to success or growth. A 2010 study showed a correlation between female directors and being in the top of the Fortune 500. In 2012, Harvard Business Review published an article titled “Are Women Leaders Better” which looked at a study of over 7,000 corporate leaders. When evaluated on sixteen core competencies, women continued to score higher on twelve out of sixteen of those competencies.

It is clear that keeping women in the law is of some importance. So how do we stop the exodus?

In her speech, Chief Justice Beverly Mclachlin suggested that a virtual revolution of the legal profession could be a potential game changer for women: “Electronic communication with clients and colleagues frees lawyers from the need to huddle together in the same physical space, permitting more flexible work places and raising the possibility of the virtual law office. Such arrangements may increase efficiency, allow lawyers to reach clients they might otherwise not reach, and provide flexibility to people who for family or other reasons find it difficult to check into a distant office each morning and stay there the entire day.”

Many have proclaimed the virtual law office to be the perfect solution for the exodus of women. In fact, Canada has seen a rise of women taking advantage of the virtual law office.

In 2009, Pam Jefcoat and two other partners founded Valkyrie Law, a virtual law firm made entirely up of women. Jefcoat says of her daughter “I do enjoy being more a part of her life than I was when I was working downtown. You’re not commuting, so you save so much time after work and before work. You can have breakfast together. You’re home for dinner. There’s that flexibility there and a sense of security when your child knows you’re home.” See more here.

Before we get ahead of ourselves, it is essential to note that the virtual law office is not without its drawbacks. While one may save on real estate costs, office supplies, staffing and commuting costs, there are a host of new problems that go along with the virtual office. Running a virtual law office requires certain cloud services: document management, website hosting, portals etc. In most cases a third party provides these services. Because of this, issues arise concerning confidentiality, privilege, ownership and protection of intellectual property rights and data. The lines surrounding liability and indemnity can become blurred if something goes wrong. The problem can be compounded if the third party is based in a foreign jurisdiction. For larger files, outsourcing staff can threaten ethical integrity as managing, monitoring and evaluating people becomes difficult if not impossible. Perhaps less troubling, running a virtual law office often limits your access to the brotherhood of knowledge present in a conventional firm. Working virtually can be an isolating experience. If your virtual firm is home based, it may be difficult to establish work-life balance, ironically bringing the problem full circle.

The exodus of women is what you would call a wicked problem— as solutions come forth, an entirely new set of problems rises up. But this doesn’t mean that we should entirely avoid addressing the problem. Changing the culture of the legal profession and the way we do business will not happen overnight. The solution to the exodus of women must come incrementally, one step at a time. So while the virtual office comes with a lot of drawbacks, it represents a preliminary step towards increasing the number of practicing women and bettering the world of law as a whole.

 

 

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Whose Moral Principles?

Let me start by saying this that this is the first time I’ve ever been anywhere near a blog, and that my relationship with technology is tumultuous at best. So please go easy on me.

My post is concerned with Rachel Rodgers’ 21st Century Lawyer Manifesto. While Rodgers makes some entertaining statements, I found a real point of contention with her number 6 that reads: “we value moral principles over ethics rules”.

I don’t pretend to be an expert; I’ve never worked in a law firm or anything closely relating to a job in the legal profession. In fact, my previous vocations include fixing cars, digging trenches, fighting forest fires (see above), and tackling people. So take what I am about to say with a grain of salt, but aren’t ethics pretty integral to society’s trust in the legal profession?

The term ‘moral principles’ carries with it a level of subjectivity that I’m not really comfortable with endorsing. The thought of relying on an individual’s sense of morality, in a world where people’s (including lawyers’) moral compasses are pointed in a million different directions, is a pretty scary premise. Imagine a situation where a lawyer would circumvent ethical standards in favour of their own moral beliefs.

In British Columbia, lawyers’ ethics are governed by the Law Society’s Code of Professional Conduct. The Code is available to the public, and outlines the ethical expectations of those in the legal profession. Anyone seen to have contravened this Code is brought in front of the Law Society for a hearing. Punishments for unethical behaviour can include fines, suspensions and disbarment. All of the information surrounding these hearings is also available online.

Rodgers claims: “ethics rules represent an outdated way of doing business and have not fulfilled their purpose—to protect the public from bad lawyers and elevate our profession”. I respectfully disagree. The entire purpose of the Code is to protect the public by maintaining the standards expected of lawyers. Any deviations from those standards are met with harsh penalty, which are openly available for any and all to see.

I agree that life as a lawyer in the 21st century will be different from decades past, I guess, I wasn’t there. But as prospective lawyers there’s a good chance we could one day have significant and consistent impact on people’s lives. I argue that we need to maintain the objective accountability that our legal ethics provide, and that they cannot be substituted or relinquished. Despite the fact the legal profession will need to make some changes in order to maintain relevancy, there are some areas that should be left alone.

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tradition

 

In Chapter 6 of Richard Susskind’s book “Tomorrow’s Lawyers”, he discusses the status quo of how law firms have operated historically, and just how risky these traditions may be in the current global economic and social markets.

In working for a medium sized full service law firm this past summer, I absolutely agree with the concerns surrounding the sustainability of the traditional model of law firm operations. Considering costs associated with the practice in addition to the “extras” which the large firms consider to be a part of the basic “necessities”, it is clear that the amount of money being generated and spent goes beyond what can reasonably be sustained in the current economy. These include corporate lunches, dinners and parties. Although my firm is a medium sized firm, the partnership was always keen on ensuring that the lawyers felt appreciated by hosting lunches, dinners, marketing and networking events in addition to an annual retreat.

It would be a lie to say that I was not happy to receive such generosity and appreciation by my superiors and colleagues, however, I have to be honest in admitting that these “extras” are not as “necessary”7427c23ab949b2e020dae43a6a58a053 as we’d like to think they are.

When I think about where the money comes from to provide such gifts to the lawyers at the firm, I always end up with one source; the clients. It seems problematic to use funds allocated and paid for legal services towards personal expenses in house. However, this has always been “the way”.

Susskind notes that “lawyers have for many years performed routine work for which they have been overqualified and for which, in turn, they have been overcharging”.

Does the above statement explain why the traditional model has become entrenched in firm culture? I would argue that the compensation received from clients for legal services must cover the special knowledge, understanding and reassurance that a lawyer provides their client. Namely, clients pay to have a lawyer deal with their matter in order for them to feel as relaxed as possible with their predicament. The specialized and privileged access to information granted to lawyers is also a chargeable service in my view. Considering the average law school education amounts to sixty or so thousand dollars excluding undergraduate or postgraduate studies, it seems understandable why young lawyers are eager to join a firm where they will have the potential to grow into a gainful practice that follows the traditional model.

Susskind is correct however in stating that “to survive and thrive I suspect most will need to [make] changes to enable the changes from their current approach to a new, sustainable, longer-term business model.”

Personally, I think the primary issue is that clients are able to access plenty of information online through a variety of platforms, including digital lawyer substitutes. These substitutes offer users an online, self-serve options in drafting routine documents such as leases, powers of attorney, etc. Other sites offer legal advice, etc.

If law firms perceived these substitute services as legitimate threats to their business then change would likely arise. However, law firms, specifically the large global firms, do not recognize the threat and therefor are not motivated to change. Maybe this is the root of the problem?

History tells us however, that giants can be defeated by the “little guy”.

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LawHacks: The Main Assignment

The main project that participants in L21C will work on for the next three months is called “LawHacks.”  It’s a group project that will culminate in a pitch, “Dragon’s Den” style, to a panel of judges.  The challenge is to come up with innovative ways to provide legal services and do law better.

Here are the detailed instructions:

 

Screen Shot 2015-09-08 at 3.54.49 PM

The Problem

The idea behind LawHacks is crowdsourcing solutions to a problem. The problem, in very simple terms, is finding better ways to be lawyers.

To elaborate:

  • From a certain perspective, there is an oversupply of legal services: it’s becoming harder for some firms to compete and stay profitable, there’s softening of demand (and expectations of better deals on price, speed and efficiency) from traditional purchasers of legal services, and the job market is getting tougher.
  • At the same time, there is an undersupply of legal services: there is a huge amount of need for help with legal problems that is not being met. Business clients still need legal services, but they are facing their own pressures to ensure that each dollar spent on lawyers is justified. Ordinary people generally have severely limited access to legal services, or no access at all.

So the problem is how to bridge that gap, between shrinking profitable work for lawyers and unmet demand for our skills and help.

The gap is connected to other challenges facing the profession, including: attrition of talented and highly trained people, especially women and minorities; narrowing access to the legal profession linked to the cost of legal education and a shrinking supply of articling positions; and the difficulty that some lawyers experience in achieving a satisfying and well-rounded life.

There are lots of smart, talented people who want to help solve clients’ legal problems and have the knowledge, intelligence and creativity to do it, and there lots of potential clients who need them, yet in many ways our current system for connecting one side of that equation to the other is not functioning well.

This is what is known as a “wicked problem.” It is multidimensional. It does not have a single “right” solution (although there are surely solutions that are better and more effective than others). Wicked problems are tough to solve – or even impossible to solve completely – because they involve a complex mix of contradictory and changing requirements, and a solution that deals with one dimension may reveal or create other problems.

 

The Proposal

Your task is to come up with a strategy, idea, tool, product or something else that helps address the problem.

Essentially, you are developing an innovative technology, in the broadest sense of the word:

Technology is the collection of techniques, methods or processes used in the production of goods or services or in the accomplishment of objectives (Wikipedia)

This does not have to mean technological solutions in the narrow sense (for example, designing an app or using modern communications technology) – but of course, you are welcome to incorporate “tech” elements like these into your project.

You choose your own direction.

Your team can choose which of the many dimensions of the problem you want to focus on.

Here are a few suggestions for directions you might want to pursue. They are suggestions only, intended to spark your imaginations, not to constrain you.

  • New approaches to regulation of the profession and/or business models (see readings for October 14)
  • New approaches to charging for legal services (see readings for October 21)
  • Technological solutions to enhance access to justice for disadvantaged groups (see readings for October 28)
  • Reformed approaches to legal education and the law school curriculum (see readings for November 11)
  • A plan for improving diversity in the profession and the retention of women and minorities (see readings for November 18)
  • A better way of disseminating legal information to those who need it
  • A new approach to funding legal education to improve access to the profession and give graduates more freedom in their choice of career options
  • A plan for getting better and more complete information about unmet needs for legal services

 

How you turn your idea into a proposal to present to the judges is really up to you. There are two main things to keep in mind:

  • You have to explain to the judges why it matters – why is it important to do the thing that you are trying to do?
  • And you have to convince the judges that it will work – is this a practicable solution that will produce useful results?

 

The Pitch

Teams will pitch their LawHacks to a panel of “dragons” in the last two class sessions, November 25 and December 2.

Each team has a total of 40 minutes allotted for its pitch.

The overall goal, similar to “Dragon’s Den,” is to persuade the dragons that your project is worth “investing” in. Unlike in Dragon’s Den, however, your project does not have to be a business proposal intended to generate profits (although it can be – and if it is, you should be prepared to show the dragons how it will make a profit). You should persuade the dragons that this project will give a good return on investment – whether that is measured in the traditional way (profit) or as a social investment that creates benefits for the community.

The total time consists of:

  • The “elevator pitch”: 5 minutes. This is a very quick explanation of the essence of your idea.
  • A more detailed presentation: 15 minutes. This is where you walk the dragons through the specifics of your proposal. Think of it as something like a TED talk.
  • Interview with the dragons: 20 minutes. The dragons will question you about how your proposal will work, what problems there might be and how you plan to address them.

How you set up your presentation and what tools you use is completely up to you. You can use live talk by the whole group or any number of members of the group; Powerpoint; Keynote; Prezi; video; a web site; a demo of any prototype you have created; or any combination of these or anything else.

  • You need to have a realistic plan for putting your idea into operation; just a vague idea is not going to cut it with the dragons.
  • You should gather relevant information and research to support your proposal, show why it’s needed and that it is feasible.
  • You should give due consideration to how your idea might exacerbate problems, or reveal new ones, while solving the problem you are focusing on (this is characteristic of wicked problems). Be prepared to convince the dragons that you have a plan to mitigate the difficulties, or that your idea is a net positive even if it might have some unavoidable costs.

 

***IMPORTANT: Materials to Submit in Advance***

You must prepare at a minimum, a two-page summary of your proposal for the dragons and the rest of the class, and submit it one week in advance of your presentation.

You are also allowed (but not required) to prepare any other materials you like and submit them to the dragons to help them understand your idea – but use your judgment and avoid overloading them.

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A Road Trip Without a Map

As I write this, Labour Day weekend is winding down. The last long weekend of summer goes well with thinking about road trips. And I’m about to set off on one, metaphorically speaking – perhaps the riskiest and most rewarding kind, a road trip with no map. I don’t know where we’re going to end up or how we’re going to get there.

This metaphorical road trip is TRU Faculty of Law’s brand new course, Lawyering in the 21st Century. I am attempting to choreograph a course that is not exactly like anything that has been done in a Canadian law school before, although it is inspired by some innovative courses created by others – for example, Mitch Kowalski’s Law 2025. One distinctive aspect of this course is that I am encouraging students to think hard about the connection between the challenges that the established business model for law firms is facing and the access to justice crisis. How can it be that there are too many lawyers and not enough lawyers, both at once? Another unique design feature (at least, I think it is) is that the class is set up as a fictional law firm, in which all the students are partners. L21C is something we will create together.

So, fortunately for me, I am not alone on this unpredictable trip. I have collaborators and partners: the students, of course, and also the wonderful, brilliant people who have generously (and very enthusiastically!) agreed to share some of their valuable time and brainpower as guest speakers. This trip will probably be a bit chaotic, and it’s bound to have some unexpected twists and turns, but one thing I’m sure will happen is that we will learn a lot from one another.

It’s been quite challenging thinking up what to write about for this inaugural blog post. It is not really adequate, or interesting, to say I don’t know what’s going to happen next, even if it is honest!

I have found my thoughts keep returning to my experience as a new lawyer, many years ago, which started me thinking about the same questions I am still grappling with today in this course. So I decided to write about that, and here it is.

In 2004, I started as an associate at a big international law firm based in New York. I should say right from the start that in that job I had the privilege of working with some of the most brilliant and creative people I’ve ever known, and I learned a tremendous amount from them and from the experience, which is like nothing else on earth. But there were some things about it that were really bad, especially at the beginning.

When I started at the firm, many associates in their first couple of years of practice were being assigned to mind-bogglingly enormous projects of responding to SEC enforcement requests (the SEC is the US Securities and Exchange Commission, the agency that regulates and polices the capital markets). This involved reviewing e-mails – clients’ internal emails that the SEC had demanded to look at, for potential evidence of self-dealing or messing with the rules – before handing them over. We needed to check whether they were protected by solicitor-client privilege. We needed to check whether there was anything significant or problematic in them that we needed to know more about as the client’s lawyers, or that might affect the client’s strategy in dealing with the Commission. The e-mails were in the millions. A lawyer had to look at Every. Single. One.

What this translated to in real life was rooms full of sad junior associates in conference rooms staring at computer terminals while they (and by they I mean we) clicked on e-mails and organized them in different folders. Meanwhile, slightly more senior and equally sad associates managed the many moving parts of these massive, unwieldy operations.

What made us all unhappy about this was not just the long hours and pressure to work fast, but how mindless it was. A moderately intelligent high-school student could easily have done it. It is dispiriting, after many years of sophisticated higher education, to do nothing but work that doesn’t require that education. It’s also an extraordinary waste of talent and potential.

The mindlessness of the work was connected to another problem. The firm was charging clients for this at work the hourly rate of a first- or second-year associate, multiplied by a conference room full of associates, multiplied by months and months of very long days. That arrangement was highly profitable for the firm (since essentially the only cost to the firm was the fixed cost of our salaries). From the clients’ point of view, though, I think it would not be unfair to describe it as a rip-off. They were paying the rates of people with years of top-tier professional education for a job that a diligent teenager could have done. The clients were highly sophisticated international businesses. I think at least some of them must have noticed.

At the time, I thought this was an unsustainable business practice that was bound to change before long. And indeed it did. Within a couple of years, big document production projects like that were being done mainly by contract attorneys, rather than the firm’s own expensive permanent associates. That cut the cost to the clients and mitigated the problem of junior associates leaving in droves because they were miserable and weren’t getting any real professional experience.

But that was only an incremental change. The fundamentals of the business model were the same, with some tweaking of the dollar amounts. The firm hires a lawyer who costs X, puts that lawyer to work on a highly labour-intensive process, and charges the lawyer’s time to the client at an hourly rate of X plus a lot. The profits (X plus a lot, minus X, times loads and loads of hours) go to the partners.

Do you notice anything strange about this? What other businesses determine the price they charge for something by taking what it costs them to make the product and adding a markup? What happens to a business like that if a competitor offers the same thing at a cheaper price? What incentive does the firm have to make this process better, faster and/or cheaper? A computer could probably do what we were doing – very probably now, quite possibly even back then – faster, about as accurately (maybe more accurately), and at a much lower cost. But for a law firm to adopt the technology that could do that would be economically self-destructive.

I love the law and I love the legal profession. When I talk about things that aren’t working well in the legal industry I don’t mean to denigrate the smart, honourable and often very idealistic people who are part of it. This post is not a set-up for a lawyer joke. Also, it’s important to remember that all human institutions are imperfect, and none of them do everything they’re designed to do really well all the time.

And yet. The legal profession seems to be facing a critical moment in its sense of identity and purpose of which my e-discovery experience a decade ago was merely a symptom.

What really strikes me now about that situation is that it didn’t work for anyone. It was unfair to clients. It was soul-destroying for associates (and then for the contract attorneys). It wasn’t even working for the partners. Yes, they made profits from it, but I think they saw how different this was from the traditional way young associates used to come up and learn the craft of being a lawyer from their seniors, and they were uncomfortable about it.

Above all, the whole situation undermined the ideal of the lawyer as a learned professional providing carefully tailored expert counsel and representation. This reality was a lot more like working in a factory, or being plugged into the Matrix.

To paraphrase Lincoln, you can’t displease all the people all the time. At least, you can’t do that and expect to go on the same way for very long.

Later I learned that I wasn’t the only person to have noticed that something wasn’t working. There is extensive literature on (for want of a better umbrella term) disruptive innovation in the law. There are many brilliant people coming up with new models and using developments in technology to unlock new possibilities.

I have to acknowledge that some of the ideas out there about the future of our profession are a bit discouraging. Richard Susskind, in his brilliant book The End of Lawyers, speculated that one day lawyers could go the way of the old medieval guilds, like tallow chandlers. He could perhaps have added the obsolete legal para-professionals of the past, like scriveners. Maybe years from now future generations might have to ask museum tour guides and historians to explain what lawyers were.

But nobody knows the future. Lawyers might be in for a better future than the tallow chandlers and the scriveners. In fact, we may be on the verge of a very exciting time, when creative new ideas and new technologies could solve some of the problems that for years have undermined our profession’s effectiveness in living up to our ideals of public service, justice and equality.

We are probably looking at a future that’s a complex mixture of both – endings and losses entangled with opportunities and rich rewards.

Setting off into this unpredictable future is – like a road trip without a map – scary, but also exciting. What I hope this course will achieve is to equip the students, my partners, with some kind of road map for their futures. They may be maps with some empty bits marked with nothing but “here be dragons.” But it’s a start. And while I hope to create an environment that enables my student-partners to chart their course, the maps will be their own work, created by themselves, because no one else can do that.

On Labour Day weekend a few years ago, when I lived in Nova Scotia, I set off with a friend and a posse of dogs on an afternoon day trip to the beach – and then, spontaneously, that turned into an unplanned weekend-long road trip around the province. We had no idea what we were going or how we would get there. We did have GPS, though!  I suppose these days there’s no longer any such thing as a literal road trip without a map!

That was one of the best trips of my life. I hope this one turns out to be just as good.

Away we go!

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